By NICK SCHWELLENBACH and DANIELLE BRIAN
At the end of July, Robert MacLean learned the outcome of over a year of waiting. He was waiting on a second ruling from the relatively obscure and awkwardly named Merit Systems Protection Board (MSPB, or the “Board”). The three-member Board in Washington, DC, is an administrative quasi-court that handles federal government whistleblower claims of retaliation, among other things. MacLean is a former federal air marshal who blew the whistle in July 2003 on his agency, the Transportation Security Administration, or TSA. After lengthy reviews by the U.S. Court of Appeals for the Ninth Circuit and two by this Board, the first one in 2009, MacLean lost his claim that he was retaliated against.
There are important takeaways from the MSPB’s ruling.
First, the ruling should put to rest any doubts about whether MacLean is a whistleblower. Although he lost, the Board wrote that the TSA does not dispute that MacLean blew the whistle to the media, that his whistleblowing sparked outrage in Congress and stopped what the TSA intended to do that was believed to create a homeland security risk, and that his termination was due to his whistleblowing. MacLean blew the whistle on a TSA plan to reduce air marshal coverage of international and long-distance commercial flights two days after the federal government was circulating warnings of a heightened risk of an Al-Qaeda suicide hijacking plot to exploit a visa and screening loophole—the TSA disputed none of this.
It’s also worth noting that no one, not even the TSA, disputes that MacLean spoke with the Department of Homeland Security Office of Inspector General (IG) about his concerns before going to the media, but that MacLean felt the IG did not seem interested in his concerns. The TSA also does not dispute that the information MacLean shared with the media was not marked as sensitive or classified in any way. It is not in dispute that the basis for his termination was the release of information that was not marked as sensitive or classified.
If you have any doubts about my characterization of the facts that are not in dispute, please read pages 2 through 4 of the Board’s July 25, 2011 ruling in Robert J. Maclean v. Department of Homeland Security.
Second, the ruling underscores just how weak and ineffectual current whistleblower protections are. What is in dispute in this case is whether MacLean deserves protection under the Whistleblower Protection Act. In general, the weakness of the law is why many whistleblowers do not win under the Board, or in appeal before the U.S. Court of Appeals for the Federal Circuit. Just because a whistleblower does not win before the Board does not mean they are not a whistleblower. They simply have been denied protection under the current law.
Specifically in MacLean’s case, the Board said there are no whistleblower protections available to him under the law if he publicly disclosed information “specifically prohibited by law” from disclosure to the public. But there is an important additional twist here, which brings us to…
The third key takeaway: the ruling highlights major weaknesses in policies regarding the marking of unclassified information and the burden placed on potential whistleblowers. There is a dispute over whether or not TSA employees should be able to be retaliated against for mishandling information that could be construed as “Sensitive Security Information” (SSI) even if it is not marked as such at the time of disclosure. The Board basically ruled that it didn’t matter whether the information was marked SSI or not—that MacLean should have known better. The Board wrote, “the outcome of this case does not turn on whether the appellant credibly testified that he did not know the [Remain Overnight] directive was SSI when he disclosed it to the MSNBC reporter.”
Congress, however, has argued otherwise. From a House of Representatives report in the late 1980s:
Without the classification markings on unclassified information, however, an employee cannot be sure that the nondisclosure agreements' restrictions apply to that material. Consequently, they must check with their supervisors, thereby alerting them to the disclosure. That invites a chilling effect.
A system outlined in the MSPB ruling—in which it doesn’t matter if information is marked as something that should be protected at the time it is disclosed—invites abuse by the executive branch. This is the main reason why POGO has long been an advocate of MacLean—we also think his whistleblowing itself was worthwhile.
To explain the policy implications further: It is bad enough that national and homeland security whistleblowers lose their jobs and are prosecuted when they blow the whistle in a system that virtually everyone says is awash in vast overclassification. Much of the information that is marked as classified, or as SSI in the aviation security world, is innocuous and/or should not be marked. Now, whistleblowers working in national security or aviation security must be prepared to be told that information that is not marked could later be deemed classified or sensitive and thus can be utilized as a reason to retaliate against them. Of course, whistleblowers could try to work solely within the system, a system that often fails to adequately investigate their allegations and, when it does, often does nothing to address the substantiated problems. These failures of the system are often why whistleblowers take great risks and go to the media.
At the end of the day, the MacLean case is important because it helps define the parameters of homeland security employee free speech rights. The Board ruling is troubling because we believe it shifts an unreasonable burden on TSA employees to know what information could be considered secret—and thus used as a reason by management to retaliate—even if the information is not labeled as secret at the time.
Nick Schwellenbach is POGO's Director of Investigations. Danielle Brian is POGO's Executive Director.